MACRA's Information Blocking Threat May be Toothless

Whether the practice of reasonable or unreasonable data blocking yields to government or market forces in 2017 remains to be seen.

As we await stronger signals about where the Trump administration will take health IT from here, keep in mind that the Republican contribution to the MACRA legislation talked tough about information blocking by healthcare providers and HIT vendors.

This tough talk, which originated in Senate hearings in 2014 and 2015, pegged information blocking as a key factor inhibiting the growth of value-based care and was echoed in a 2015 ONC report commissioned by the Republican-controlled Congress as well as ranking committee Democrats in the House and the Senate..

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As a refresher, ONC's report states that information blocking occurs "when persons or entities knowingly and unreasonably interfere with the exchange or use of electronic health information."

MACRA spells out just how ONC would enforce its new power to combat information blocking. On or after April 16, healthcare providers will submit attestations to CMS which require the provider to affirm they did not knowingly and unreasonably interfere with the exchange or use of electronic health information.

Following such attestations, providers who feel that information blocking is continuing to occur are free to complain about it to ONC, and CMS is empowered by MACRA to audit these providers. If the audit reveals that the complaint is warranted, CMS is further empowered to take appropriate action.

Comments on this part of the MACRA file rule ranged from concerns that it was too vague to concerns that it was too prescriptive.

"The majority of commenters, whether they supported or opposed the proposal, stressed that certain factors that prevent interoperability and the ability to successfully exchange and use electronic health information are beyond the ability of a healthcare provider to control," CMS wrote in the final rule.

EHR Vendor Perspective

To me, however, it appears that there is so much room in the phrases "knowingly and unreasonably interfere" that it remains to be seen whether the information-blocking provisions of MACRA will result in fewer reported or unreported instances of information blocking.

For some perspective, immediately prior to the Presidential election, I spoke with the two leading EHR vendors who were attending the CHIME conference.

One of those vendors, Epic, declined to update its comments after the election, but I sketched a scenario for the company that it seemed all too familiar with.

In cases I've had described for me more than one, a given provider says it is happy to share information with another provider, provided that the information is accessed through the first provider's health information exchange. The exchange may be of its own creation, or one the provider has contracted with to provide outside data access.

But the provider requesting the information may very well want to use its own HIE, or an emerging national network such as Epic's CareEverywhere, the CommonWell Health Alliance, or the Sequoia Group's CareQuality network.

Because the provider receiving the request is wedded to its own network or HIE, the resulting situation appears to be a standoff. But is it a standoff that meets the condition of "knowingly or unreasonably interfere"?

"And let's multiply this a little bit," says Epic chief executive officer Judy Faulkner. "That organization doesn't get one request to do it their way. It gets 25 requests, [to do it] in all different ways, and they don't even have the staff to do it."

No 'Willful' Blocking

All of which, Faulkner says, is that the incidence of willful blocking "doesn't occur." Instead, it falls into the category of reasonable lack of interoperability.

CareQuality connects Epic and other EHR vendors together, including athenahealth, which is also a member of CommonWell. But as of yet, CareQuality and CommonWell have no announced intention or timeframe to connect to each other.

And those state-based HIEs which still exist, by-and-large do not yet connect to each other, although HIE Texas is now a CareQuality member, notes Dave Fuhrmann, a software developer who leads Epic's interoperability team.

"I still think data blocking exists, and it's more subversive and below the surface," says Zane Burke, president of Cerner. "It's going to be very challenging to implement, and we don't have a lot of guidance on what CMS and ONC are saying behind that."

A quick check with Cerner officials after the election basically echoed Burke's remarks.

So will the practice of reasonable or unreasonable information blocking yield to government or market forces in 2017? Without progress on this front, it will be difficult for either the current or future administration to call MACRA a success.